Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Monday, May 18, 2020

The Supreme Court of Washington: Surviving Spouse Gave Up Right to Intestate Succession in Separation Contract

Waiver-e1560119697129The Supreme Court of Washington held in In Re Estate of Petelle, that the right of a surviving spouse to intestate succession can be waived in a separation contract, even if not expressly stated. The Court held that the language, "all marital and property rights" includes the right to inherit as an intestate beneficiary. 

Michael and Michelle had been married for six years before Michael filed a petition to dissolve the marriage. The parties executed a separation contract that dissolved assets and liabilities. In the separation contract the parties agreed to make a complete and final settlement of all their marital and property rights on the following terms and conditions, which stated:

“The contract shall be final and binding upon the execution of both parties, whether or not a legal separation or decree of dissolution is obtained[,]” and, by its terms, the contract remained valid and enforceable against the estate of either party if either party died after the execution of the contract. Though the contract contains a “Full Satisfaction of All Claims” section, the right to intestate succession is not mentioned."

Michelle claimed that her and the decedent were considering reconciliation, however, the decedent died intestate before divorce or reconciliation could occur. Following the decedent's death, Michelle opened decedent's probate without disclosing the separation contract or giving notice to decedent's heirs. Decedent's mother contested the grant of powers of Michelle; she also petitioned the trial court to terminate Michelle's right to intestate succession, but the trial court denied the petition. However, the Court of Appeals reversed, finding that the petitioner waived her right to intestate succession under the language in the separation contract.

The main takeaway is that, in Washington, statutory intestate rights can be waived by either express waiver or implied waiver. Further, under Washington law, intestate rights do not have to be specifically referenced in a separation contract. 

See The Supreme Court of Washington: Surviving Spouse Gave Up Right to Intestate Succession in Separation Contract, Probate Stars, May 18, 2020.

https://lawprofessors.typepad.com/trusts_estates_prof/2020/05/the-supreme-court-of-washington-surviving-spouse-gave-up-right-to-intestate-succession-in-separation.html

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